D
was involved in a motor vehicle incident, following which he was asked to
submit to breathalyzer tests. The instrument registered 99 and 97 mg of
alcohol per 100 mL of blood. D was charged with impaired driving and driving
with a blood alcohol level over the legal limit of 80 mg of alcohol in 100 mL
of blood.

At
the beginning of D’s trial, counsel for D advised the judge that he intended to
tender a toxicology report in order to challenge the accuracy of the
breathalyzer test results — what is known as a Carter defence. Crown
counsel wished to cross‑examine the toxicologist on his report, but the
latter was not present and the trial was accordingly adjourned. Following the
adjournment but prior to the resumption of D’s trial, amendments to the Criminal
Code were enacted, the effect of which is to eliminate the Carter defence
as an independent means to raise a doubt about the reliability of breathalyzer
test results.

The
trial judge accepted the Carter defence adduced by D and entered an
acquittal. The summary conviction appeal judge upheld that decision concluding
that the new legislative provisions virtually eliminated the Carter
defence, that they were substantive in nature and not procedural, and that they
therefore applied only prospectively. The Court of Appeal reversed that decision
and held that the new legislative provisions were merely evidentiary and that
they therefore applied to the case. A new trial was ordered to proceed on the
basis of s. 258(1) of the Criminal Code as amended.

Held
(McLachlin C.J. and Rothstein and Cromwell JJ. dissenting): The appeal should be allowed and the acquittal restored.

Per
LeBel, Deschamps, Fish and Abella JJ.: Courts have long recognized that
the cases in which legislation has retrospective effect must be exceptional. More
specifically, where new legislative provisions affect either vested or
substantive rights, retrospectivity has been found to be undesirable. The key
task in determining the temporal application of new legislative provisions lies
not in labelling the provisions “procedural” or “substantive”, but in
discerning whether they affect substantive rights.

The
fact that new legislation has an effect on the content or existence of a
defence, as opposed to affecting only the manner in which it is presented, is an
indication that substantive rights are affected. As a result of the amendments
to the Criminal Code and the decision in R. v. St‑Onge
Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187, the only evidence that can be
tendered to raise a reasonable doubt about the reliability of breathalyzer test
results is now evidence that the instrument was malfunctioning or was operated
improperly. The Carter defence has been eliminated as an independent
means to raise a reasonable doubt about the reliability of breathalyzer test
results. This illustrates that the amendments to the Criminal Code are
not merely procedural; they affect a defence open to an accused and are
therefore subject to the presumption against the retrospective application of
new legislation.

The
broad scheme put in place by Parliament is based on presumptions that the
results of the breathalyzer analyses are accurate and that they are identical
to the blood alcohol level of the accused at the time of the alleged offence.
As discussed in St‑Onge Lamoureux, these statutory presumptions
infringe the constitutionally protected right to be presumed innocent. The
conclusion that the infringement is justified in the context of the new
legislation does not alter the fact that constitutional rights are affected.
This is a further indication that the new legislation affects substantive
rights, since constitutional rights are necessarily substantive. When
constitutional rights are affected, the general rule against the retrospective
application of legislation should apply.

Finally,
where the former legislation does not
contemplate the gathering of evidence that is required by the new legislation,
the new legislation can only be prospective.

Per
McLachlin C.J. and Rothstein and Cromwell JJ. (dissenting): There are three principles of statutory interpretation that are
potentially relevant to the issue of when new legislative provisions apply.
One principle is that the legislature is presumed not to intend legislation to
change the legal character or consequences of actions that occurred before its
enactment. Another is that the legislature is presumed not to intend to
interfere with vested rights. A third is that the legislature intends an
enactment dealing with exclusively procedural matters, including matters of
evidence, to apply immediately to all proceedings, whether commenced before or
after the enactment comes into force. The principal question in this case is
whether the new legislative provisions at issue are procedural or substantive.

The
new legislative provisions in issue meet all of the tests enunciated in the
Court’s jurisprudence for determining whether a provision is procedural and
they have none of the characteristics of provisions which are properly
characterized as substantive. The provisions deal with factual presumptions
and what is required to rebut them, and their operation is dependent on the existence of
litigation. Evidentiary provisions like these are
ordinarily considered to be procedural. Moreover, the provisions have none of
the hallmarks of substantive provisions. They do not attach new consequences
to past acts or change the substantive content of a defence, nor do they change
the existence or content of a right. The elements of the offence have not
changed and it remains open to the accused to point to evidence raising a
reasonable doubt about the existence of those elements. The provisions do not
make conduct unlawful that was lawful at the time it occurred. In addition, the fact that a provision is found to limit
an accused’s right to be presumed innocent under s. 11(d) of the Charterdoes not support the conclusion that the provision is substantive.

The
new provisions do not eliminate or neuter a defence. The so‑called “Carter
defence” in reality is a particular type of evidence adduced in order to
raise a reasonable doubt. If these provisions are characterized as taking away
a defence, then any evidentiary provision that increases the risk of conviction
would have to be so characterized. The jurisprudence of this Court makes clear
that this is not the case.

The
new provisions accordingly relate only to the rules of evidence which apply at
trial and they are therefore purely procedural. As such, these new provisions
are subject to the presumption of immediate application, and there is nothing
to rebut this presumption.

[2]As I explain in greater detail in my reasons in R. v.
St-OngeLamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187, a case heard
concurrently with the case at bar, the Amendments limit the evidence an accused
can adduce to raise doubt about the reliability of breathalyzer test results
obtained using an approved instrument. The objective of the Amendments, which
form part of a broader scheme implemented by Parliament to reduce the incidence
of impaired driving, is to give those results a weight consistent with their
scientific value (St-Onge Lamoureux, at paras. 29 and 31). In order to
rebut the presumptions of accuracy and identity applicable to breathalyzer test
results, which favour the Crown, an accused can no longer simply rely on an
expert opinion that the amount of alcohol he or she consumed is inconsistent with
the test results — what is known as the “Carter defence” (R. v.
Carter (1985), 19 C.C.C. (3d) 174 (Ont. C.A.)).

[3]There are no transitional provisions that
provide express guidance as to whether the Amendments apply retrospectively,
that is, to conduct which occurred before the Amendments came into force.
Resort must be had to general principles and to the effect of the Amendments.
For the reasons that follow, I conclude that the Amendments do not apply
retrospectively. I would allow the appeal and restore the acquittal entered at
trial.

I. Facts and Judicial History

[4]On July 22, 2007, a vehicle driven by the
appellant, Samuel Dineley, struck a parked vehicle. He was asked to submit to
breathalyzer tests. The instrument registered 99 and 97 mg of alcohol per 100 mL
of blood. He was charged with impaired driving and driving with a blood alcohol
level over the legal limit of 80 mg of alcohol in 100 mL of blood.

[5]At the beginning of the trial, on June 19, 2008,
counsel for Mr. Dineley advised the judge that he would not be able to complete
the case for the defence that day. He intended to tender a toxicology report in
support of a Carter defence in order to challenge the accuracy of the
breathalyzer test results; Crown counsel had asked to cross-examine the toxicologist
on his report, but the latter was not present. The hearing started that day on
the common understanding that the case for the defence would be continued on
July 15, 2008 to enable the Crown to cross-examine the toxicologist. Both Crown
and defence counsel were or ought to have been aware that the Amendments would
come into force on July 2, 2008. Section 258(1)(c) of the CriminalCode, as amended by the Amendments, establishes a presumption of
accuracy of breathalyzer test results and a presumption of identity of those
results with the blood alcohol level of the accused at the time of the alleged
offence. Under s. 258(1)(c), these presumptions will now be rebutted
only if the accused leads evidence tending to show that the instrument
malfunctioned or was improperly operated. The effect of that provision,
together with s. 258(1)(d.01), is to eliminate the Carter defence
as an independent means to raise a reasonable doubt about the reliability of
breathalyzer test results.

[6]The trial judge did not allow the Crown to argue
that the Amendments applied to preclude a Carter defence. In his
opinion, it was improper for the Crown to obtain an adjournment for purposes of
cross-examining the toxicologist and then invoke the Amendments which came into
force in the interim without having first warned defence counsel that it
intended to do so. He accepted the Carter defence and acquitted Mr.
Dineley.

[7]The summary conviction appeal judge held that it
was not improper for the Crown to raise the issue of the applicability of the
Amendments. However, he was of the view that the Amendments virtually
eliminated the Carter defence, that they were substantive in nature and
not procedural, and that they therefore applied only prospectively.

[8]The Court of Appeal reversed that decision. It
held that the Amendments were merely evidentiary and that they therefore
applied to the case. According to MacPherson J.A., writing for the court, the Carter
defence had not been eliminated: it had been changed, but survived in a
different form (2009 ONCA 814, 98 O.R. (3d) 81, at para. 26). The court
ordered a new trial to proceed on the basis of s. 258(1) of the Criminal
Code as amended.

II. Analysis

[9]Whether the Amendments apply retrospectively has
been a hotly contested issue. As MacPherson J.A. mentioned in the instant case,
a large number of provincial and superior court judges across the country have
expressed conflicting opinions in this regard.

[10]There are a number of rules of interpretation
that can be helpful in identifying the situations to which new legislation
applies. Because of the need for certainty as to the legal consequences that
attach to past facts and conduct, courts have long recognized that the cases in
which legislation has retrospective effect must be exceptional. More specifically,
where legislative provisions affect either vested or substantive rights,
retrospectivity has been found to be undesirable. New legislation that affects
substantive rights will be presumed to have only prospective effect unless it
is possible to discern a clear legislative intent that it is to apply
retrospectively (Angus v. Sun Alliance Insurance Co.,[1988] 2
S.C.R. 256, at pp. 266-67; Application under s. 83.28 of the Criminal Code
(Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 57; Wildman v. The Queen, [1984] 2 S.C.R. 311, at pp. 331-32). However, new procedural legislation designed to govern only the
manner in which rights are asserted or enforced does not affect the substance
of those rights. Such legislation is presumed to apply immediately to both
pending and future cases (Application under s. 83.28 of the Criminal Code
(Re), at paras. 57 and 62; Wildman, at p. 331).

[11]Not all provisions dealing with procedure will
have retrospective effect. Procedural provisions may, in their application,
affect substantive rights. If they do, they are not purely procedural and do
not apply immediately (P.-A.
Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 191). Thus, the key task in determining the
temporal application of the Amendments at issue in the instant case lies not in
labelling the provisions “procedural” or “substantive”, but in discerning
whether they affect substantive rights.

[12]Moreover, a further factor may be relevant to
the determination of whether the Amendments apply retrospectively. It is
whether they require evidence that the accused had no reason to gather under
the former legislation.

[13]It will be helpful to reproduce the relevant
portions of the Amendments, which came into force while Mr. Dineley’s trial was
under way:

258. (1) In
any proceedings under subsection 255(1) in respect of an offence committed
under section 253 or subsection 254(5) or in any proceedings under any of
subsections 255(2) to (3.2),

. . .

(c) where
samples of the breath of the accused have been taken pursuant to a demand made
under subsection 254(3), if [list of conditions to be met],

evidence
of the results of the analyses so made is conclusive proof that the
concentration of alcohol in the accused’s blood both at the time when the
analyses were made and at the time when the offence was alleged to have been
committed was, if the results of the analyses are the same, the
concentration determined by the analyses and, if the results of the analyses
are different, the lowest of the concentrations determined by the analyses, in
the absence of evidence tending to show all of the following three things —
that the approved instrument was malfunctioning or was operated improperly,
that the malfunction or improper operation resulted in the determination that
the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol
in 100 mL of blood, and that the concentration of alcohol in the accused’s
blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at
the time when the offence was alleged to have been committed;

. .
.

(d.01) for
greater certainty, evidence tending to show that an approved instrument
was malfunctioning or was operated improperly, or that an analysis of a sample
of the accused’s blood was performed improperly, does not include evidence
of

(i) the
amount of alcohol that the accused consumed,

(ii) the
rate at which the alcohol that the accused consumed would have been absorbed
and eliminated by the accused’s body, or

(iii) a
calculation based on that evidence of what the concentration of alcohol in the
accused’s blood would have been at the time when the offence was alleged to
have been committed;

(It should be noted that the
temporal application of the second presumption of identity provided for in s.
258(1)(d.1) of the Criminal Code is not at issue in this case.)

[14]In St-Onge Lamoureux, I conclude that the
first requirement that the approved instrument was malfunctioning or was
operated improperly, as set out in s. 258(1)(c) and qualified by s.
258(1)(d.01), infringes the right to be presumed innocent protected by
s. 11(d) of the CanadianCharter of Rights and Freedoms,
but that the infringement is justified under s. 1. I also find in that case
that the other two requirements of s. 258(1)(c) — (1) that a causal
connection be demonstrated between the malfunctioning or improper operation of
the instrument and the determination that the blood alcohol level of the
accused exceeded the legal limit, and (2) that further evidence be submitted to
demonstrate that the blood alcohol level of the accused did not exceed the
legal limit — unjustifiably infringe s. 11(d) of the Charter.
All the other constitutional challenges in that case are rejected. Since only
the first requirement of s. 258(1)(c) survives the Court’s decision in St-Onge
Lamoureux, I will address the Amendments only as they stand following that
decision.

[15]Although I will not engage in the impossible
task of reconciling all the decisions in which the courts have grappled with
whether new legislation affects substantive rights, references to a few cases
will be helpful. The following statements of La Forest J. in Angus, at
pp. 265-66, are particularly relevant to the issue before us:

Normally,
rules of procedure do not affect the content or existence of an
action or defence (or right, obligation, or whatever else is the subject of the
legislation), but only the manner of its enforcement or use. . . .

. . .

Alteration
of a “mode” of procedure in the conduct of a defence is a very different thing
from the removal of the defence entirely. [Emphasis in original.]

[16]The fact that new legislation has an effect on
the content or existence of a defence, as opposed to affecting only the manner
in which it is presented, is an indication that substantive rights are
affected. I cannot accept the approach adopted by the Court of Appeal in the
instant case, according to which legislation that alters the evidentiary
content of a defence applies retrospectively (para. 27).

[17]The first question is thus whether, in imposing
a new requirement for rebutting the presumptions of accuracy and identity
applicable to breathalyzer test results, Parliament has affected the existence
or content of a defence. As a result of the Amendments and the decision in St-Onge
Lamoureux, the only evidence that can be tendered to raise a reasonable
doubt about the reliability of breathalyzer test results is now evidence that
the instrument was malfunctioning or was operated improperly. It is clear from
s. 258(1)(d.01) that the Carter defence is no longer sufficient
on its own to rebut the presumptions of accuracy and identity. The burden on
the accused has thus been increased, as he or she can no longer ask the judge
to draw an inference of malfunction or improper operation from indirect
evidence by raising a Carter defence. Evidence related directly to the
instrument itself is now required.

[18] The fact that the Carter defence is no
longer sufficient on its own to rebut the presumptions established in s.
258(1)(c) makes it difficult to accept MacPherson J.A.’s opinion that
the defence has not been eliminated, neutered or abolished and that it survives
in a different form. In fact, this opinion is in sharp contrast with the very
words of s. 258(1)(d.01), according to which “evidence tending to show
that an approved instrument was malfunctioning or was operated improperly” does
not include the evidence that would be tendered in raising the Carter
defence. Unlike MacPherson J.A., I must conclude that the Carter defence
has been eliminated as an independent means to raise a reasonable doubt about
the reliability of breathalyzer test results. This, in my view, indicates that
the provisions are not merely procedural; they affect a defence open to an
accused and are therefore subject to the presumption against the retrospective
application of new legislation. I agree with Mayrand J.A. in R. v.Gervais
(1978), 43 C.C.C. (2d) 533 (Que. C.A.), that the right of an accused to rely on
a defence is a substantive right and that new legislation has to be interpreted
so as not to deprive the accused of a defence that would have been open to him
or her at the time of the impugned act (p. 535).

[19]In St-Onge Lamoureux, I conclude that
precluding the use of the Carter defence to raise on its own a doubt
about the accuracy of breathalyzer test results does not violate s. 7 of the Charter.However, the fact that Parliament could exclude evidence of alcohol
consumption does not change the fact that a defence which on its own enabled an
accused to avert conviction has been eliminated.

[20]This brings me to my second reason for finding
that the Amendments affect substantive rights of the accused. The broad scheme
put in place by Parliament is based on presumptions that the results of the
breathalyzer analyses are accurate and that they are identical to the blood
alcohol level of the accused at the time of the alleged offence. As discussed
in St-Onge Lamoureux, at para. 27, these statutory presumptions infringe
the constitutionally protected right to be presumed innocent, as they relieve
the Crown of the requirement of proving the guilt of the accused beyond a
reasonable doubt before he or she need to respond. The legislated means to
rebut these presumptions are relevant to the determination of whether the
infringement of the right to be presumed innocent is justified under s. 1. This
is where the Carter defence comes into play. Under the former
legislation, the Carter defence enabled the accused to discharge his or
her burden of rebutting the statutory presumptions, which favour the Crown, by
relying on an expert opinion that the amount of alcohol he or she consumed is
inconsistent with the breathalyzer test results. As a result of the Amendments,
this is no longer the case. Instead, the accused must now present direct
evidence about the use or operation of the instrument in order to rebut the
presumptions.

[21]The possibility for the accused of rebutting the
statutory presumptions by means of a Carter defence (under the former
legislation) or by adducing evidence related to the instrument (under the
Amendments) is determinative of whether the infringement of the right to be
presumed innocent is justified. However, the conclusion that the infringement
is justified in the context of the new legislation does not alter the fact that
constitutional rights are affected. This is a further indication that the new
legislation affects substantive rights, since constitutional rights are
necessarily substantive. When constitutional rights are affected, the general
rule against the retrospective application of legislation should apply.

[22]In addition to the impact on the substantive rights of the accused,
there is another reason why the Amendments should not be found to operate
retrospectively. As a result of the Amendments, the evidence the accused may
present to rebut the presumptions is limited to evidence that the instrument
was malfunctioning or was operated improperly. The nature of that evidence is
not defined in the Amendments, but it presumably has to relate to the
instrument that was used to test the accused and not to the functioning of such
instruments generally. This means that the accused may need to have access to
information concerning the instrument used in his or her case or to operating
records that would enable him or her to determine whether the instrument was
functioning properly and was operated correctly. It is difficult to conceive
how such an examination could take place months or even years after the tests
were conducted. There is no indication that the instruments are isolated after
being used in a given case. Parliament has not provided for the preservation of
evidence for cases that began before the Amendments came into force.

[23]In St-Onge Lamoureux, one of the arguments put to the
Court was that the Amendments violated the s. 7 rights of the accused because
the defence required by the new legislation was so difficult to present that it
was practically illusory. This argument was rejected on the basis that there
are no limits on the evidence the accused can reasonably tender, provided that
it relates to the malfunctioning or improper operation of the instrument.
However, where, as in the case at bar, the parties did not know at the time of
the breathalyzer tests that such a defence would be required, and years elapsed
between the tests and the trial, it may be impossible to present evidence to
rebut the presumptions.

[24]There are similarities between the situation in the instant case and the
one before the Court in R. v. Ali, [1980] 1 S.C.R. 221. In that case,
amendments to the Criminal Code authorized the police to request more
than one breath sample and made the taking of two samples a condition of
application of the presumptions attached to breathalyzer test results. Because
the former provision had not authorized the police to take two samples,
prosecutions commenced before the new provision came into force would be
frustrated by the new requirement if the amendments were held to apply
retrospectively. The Court held that Parliament could not have intended such a
result. Both in Ali and in the present case,Parliament added a
requirement related to the evidence a party must adduce. In the case at bar,
the new requirement is a condition for the rebuttal of the presumption provided
for in s. 258(1)(c), whereas in Ali the new requirement was a
condition for the application of the presumption.

[25]Ali supports the view that, where the former legislation
did not contemplate the gathering of evidence that is required by the new
legislation, the new legislation can only be prospective. In the instant case,
the accused cannot adduce evidence that he had no reason to gather before the
Amendments. This is an additional reason for concluding that the Amendments do
not apply to cases that were commenced before the Amendments came into force. I
therefore disagree with MacPherson J.A. that the difficulty for an accused of
obtaining evidence on the functioning of the instrument used in his or her case
after years have gone by is speculative. Rather, I agree with the following
comment by Bich J.A. (dissenting) in R. v. Loiseau, 2010 QCCA 1872 (CanLII),
at para. 56:

[translation]
Because the law makes the requirements for the gathering of evidence more
stringent and, due to the state of the law at the time, ensures that the
accused will not have sought evidence that would now be indispensable to him to
mount a defence, the amended provisions should not apply to this situation.

[26]For these reasons, I would allow the appeal and restore the acquittal
entered by the trial judge.

The
reasons of McLachlin C.J. and Rothstein and Cromwell JJ. were delivered by

Cromwell J. (dissenting) —

I.Introduction

[27]Section 253(1)(b) of the Criminal Code,
R.S.C. 1985, c. C-46, makes it an offence to operate (or to have care and
control of) a motor vehicle with a blood alcohol content of more than 80 mg of
alcohol in 100 mL of blood. To facilitate proof of this offence, the Crown has
for many years had the benefit of certain factual presumptions. These
presumptions arise once it is proven that breath samples were taken and
analyzed by a breathalyzer device in accordance with detailed statutory
requirements. Putting aside some points of detail, one of these presumptions is
that the readings obtained under the statutory conditions are accurate (the
presumption of accuracy); another presumption is that the readings at the time
of testing represent the accused’s blood alcohol content at the time of the
alleged offence (the presumption of identity).

[28]For many years, an accused could rebut these
presumptions by pointing to any sort of evidence that would raise a reasonable
doubt in the mind of the trier of fact about the existence of the presumed
facts. However, in 2008, Parliament enacted the Tackling Violent Crime Act,
S.C. 2008, c. 6, which amends the Criminal Code by imposing some new
rules about what sorts of evidence could be used to rebut these presumptions.

[29]The issue on the appeal is when these new
evidentiary provisions apply. Do they apply, as the Court of Appeal held, to
trials that are held on and after the day the new rules came into force, or, as
the appellant contends, do they apply only to trials relating to events alleged
to have occurred after they came into force?

[30]In my view, the holding of the Court of Appeal
is correct and I would dismiss the appeal.

II. Brief Overview of the Issue

[31]Before the 2008 amendments, the presumption of
accuracy (and therefore also the presumption of identity) could be rebutted by
any evidence that raised a reasonable doubt that the actual blood alcohol level
at the time of testing was below 80 mg of alcohol per 100 mL of blood: see,
e.g., R. v. Crosthwait,[1980] 1 S.C.R. 1089.The
presumption of identity itself could be rebutted by evidence tending to show
that the accused’s blood alcohol level at the time of the offence and at the
time of testing had changed, provided that the effect of normal biological
processes of absorption and elimination could not, of itself, constitute
rebutting evidence: R. v. St. Pierre, [1995] 1 S.C.R. 791, at paras. 44
and 59-61.

[32]Often evidence to the contrary was offered in the
form of “consumption and elimination” evidence — sometimes referred to as “Carter”evidence (R. v. Carter (1985), 19 C.C.C. (3d) 174 (Ont. C.A.)).
This typically consisted of evidence from the accused and perhaps other
witnesses about how much the accused had to drink and when, as well as evidence
from a toxicologist indicating that if the accused had consumed the amount
claimed, his or her blood alcohol level at the time of the offence would have
been below the legal limit. Sometimes the introduction of this evidence has
been referred to as the “Carter defence”, but it really is not a defence
at all. It is simply the presentation of evidence that could be relied on to
raise a doubt about whether the breathalyzer device had accurately determined
the accused’s blood alcohol content and whether that reading reflected the
accused’s blood alcohol content at the time of operation, care or control.

[33]The appellant in this case presented this sort
of evidence and was acquitted at trial. The driving in question occurred before
the 2008 amendments came into force, but his trial continued after they had.
His breathalyzer readings were 99 and 97 mg of alcohol per 100 mL of blood and
there was nothing to indicate that the device was operating improperly.
However, the appellant testified that he had only had three beers over a
roughly two-hour period and his toxicologist testified that if that were so,
his blood alcohol level would have been between 0 and 40 at the time of testing
and between 20 and 52 at the time of driving. The judge believed the appellant
and found that he was not satisfied beyond a reasonable doubt that the
appellant’s blood alcohol concentration at the time of driving exceeded 80.

[34]The 2008 amendments, if applied at the
appellant’s trial, would have limited in two respects the type of evidence that
he could have relied on to rebut the presumptions of accuracy and identity.
First, by virtue of the amended s. 258(1)(c), evidence to rebut the
accuracy of the readings at the time of testing must raise a doubt with respect
to whether the device malfunctioned or was improperly operated, about whether
the malfunction or improper operation resulted in an over 80 reading and, as
well, about whether the appellant’s blood alcohol concentration at the time of
driving was below 80 (these last two requirements have been eliminated in this
Court’s decision in R. v.St-Onge Lamoureux, 2012 SCC 57, [2012] 3
S.C.R. 187), by virtue of the amended s. 258(1)(d.01), so-called Carter
evidence cannot be relied on to raise a doubt about whether the approved
instrument was malfunctioning or was operated improperly. These amended
provisions are based on the idea that breathalyzer results obtained in
accordance with the statutory requirements should be taken to be accurate, absent
evidence to think otherwise, and that Carter evidence is too unreliable
to be admitted to cast doubt on the accuracy of such readings. These ideas find
impressive support in the scientific literature. The amended provisions, in
effect, define what types of evidence are not sufficiently probative to
be used to undermine the accuracy of the breathalyzer readings.

[35]There are three principles of statutory
interpretation that are potentially relevant to the issue of when the 2008
amendments apply. The question is which of these principles governs in this
case. One principle is that the legislature is presumed not to intend
legislation to change the legal character or consequences of actions that
occurred before its enactment. Another is that the legislature is presumed not
to intend to interfere with vested rights. A third is that the legislature
intends an enactment dealing with exclusively procedural matters, including
matters of evidence, to apply immediately to all proceedings, whether commenced
before or after the enactment comes into force. These are all principles of
interpretation and yield to clear statutory language to the contrary.

[36]The appellant’s position is that the first
principle applies. He submits that the amended provisions are not simply matters
of procedure but affect the content of a defence to the charge. Alternatively,
the appellant’s position is that even if the amended provisions are procedural,
Parliament did not intend them to apply to trials arising out of past events
and therefore the operation of the third principle of interpretation is ousted
by clear parliamentary intent. The Crown on the other hand supports the
conclusion of the Court of Appeal that the third principle applies because the
amended provisions are procedural in nature.

[37]To resolve the appeal, we must answer two
questions:

1.Are the amended provisions procedural in nature
so that they are presumed to apply to all trials occurring or continuing after
they came into force?

2.If so, is this presumption rebutted by an indication
of legislative intent that they should not so apply?

[38]I will address these two questions in turn,
after a brief account of the facts and proceedings.

III. Facts and Proceedings

[39]In the early hours of July 22, 2007, after a
night spent with friends at a nightclub, the appellant, Samuel Dineley, drove
his parents’ car into a parked vehicle. Police administered two breath tests,
which revealed blood alcohol concentrations of 99 and 97 mg in 100 mL of blood.
The administration of the tests was videotaped. The appellant was charged with
impaired driving and driving over 80 mg under s. 253(1)(a) and (b)
of the Criminal Code.

[40]His trial before a provincial court judge began
on June 19, 2008, and the Crown completed its case on that day. However, the
trial was adjourned to July 15 so that the Crown would be able to cross-examine
the appellant’s toxicologist. On July 2, that is between the trial’s
adjournment and continuation, the 2008 amendments came into force. These had
the effect of rendering the appellant’s expert evidence incapable of rebutting
the presumptions set up in s. 258(1)(c). The Crown argued that the
newly amended s. 258(1) applied immediately to all s. 253 offences, regardless
of the timing of their underlying facts. The trial judge did not decide the
issue, and instead decided that it was improper for the Crown to attempt to
rely on the new amendments when the trial resumed. After the trial’s
resumption, the trial judge found the appellant not guilty.

[41]On a summary conviction appeal, a judge of the
Ontario Superior Court of Justice found the 2008 amendments to be substantive
in nature, and so subject to the presumption against the alteration of the
legal character or consequences of past actions. In his view, the amended
provisions applied only to offences alleged to have been committed after they
came into force, and so did not apply to the charges against the appellant:
(2009), 86 M.V.R. (5th) 34. (I should add that the judge concluded that it had
not been improper for the Crown to attempt to rely on the new amendments when
the trial resumed. The appellant did not contest that conclusion in the Court
of Appeal or in this Court.)

[42]The Ontario Court of Appeal reversed this
decision, and sent the matter back for a new trial to be conducted on the basis
that the new version of s. 258(1) applied to the appellant’s case: 2009 ONCA
814, 98 O.R. (3d) 81. The court held that the amended provisions were
procedural in nature and therefore applied to all trials occurring after they
came into force.

IV. Analysis

[43]I will first give a brief outline of the
interpretive principles relevant to this case. I will then explain that the
2008 amendments at issue are purely procedural. It follows that at the moment
of their coming into force, they became applicable to all s. 253(1)
charges, including those against the appellant, regardless of the timing of
those charges’ underlying facts. I will then set out my reasons for concluding
that the presumption of immediate application is not rebutted by clear
legislative intent to the contrary.

A. The Presumptions of Legislative Intent

[44]Statutory interpretation aims to ascertain
legislative intent, which is “a shorthand
reference to the intention which the court reasonably imputes to Parliament in
respect of the language used”:R.
v. Secretary of State for the Environment,Transport and the
Regions,Ex parte Spath Holme Ltd., [2001] 2 A.C. 349 (H.L.), at p.
396; R. v. Monney, [1999] 1 S.C.R. 652, at para. 26. The courts ascertain legislative intent by
reading legislative language in context and in its grammatical and ordinary
sense, harmoniously with the scheme and purpose of the legislation at issue: Canada (Information Commissioner) v.
Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306, at
para. 27. When the legislator’s words permit it, the courts will take the
legislature not to have intended to work injustice or unfairness. The
presumptions against the alteration of the legal character or consequences of
past acts and against the interference with vested rights, as well as the
presumption supporting the immediate application of purely procedural changes,
are all manifestations of this posture of respect.

[45]Under the first of
these presumptions, the court presumes that the legislature did not intend to
change the legal character or consequences of actions that occurred before the
legislation in question came into effect:West v. Gwynne, [1911] 2 Ch. 1 (C.A.), at pp.
11-12; Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256, at p.
262; Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007]
2 S.C.R. 801, at para. 118. Under the second, the court presumes that the
legislature did not intend to interfere with vested rights that came into being
before the legislation came into effect: Spooner Oils Ltd. v. Turner Valley Gas Conservation
Board, [1933] S.C.R. 629,
at p. 638;Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271, at p. 282; Dikranian
v. Quebec (Attorney General), 2005 SCC 73, [2005] 3 S.C.R. 530, at paras.
32-36.

[46]These two presumptions
of legislative intent are closely related. Both aim to protect parties’
reliance on the law as it was at the time of acting: Angus,at
p. 268-69; Ciecierski
v. Fenning, 2005 MBCA 52,
195 Man. R. (2d) 272, at para. 29; Upper Canada College v. Smith (1920),
61 S.C.R. 413. Despite the
presumptions’ similar motivating concerns, this Court has consistently
considered them to be distinct:Gustavson Drilling (1964)
Ltd.,at pp. 279-83;Attorney General of Quebec v. Expropriation Tribunal, [1986] 1 S.C.R. 732, at pp. 741-47; Venne v. Quebec (Commission de protection du
territoire agricole),
[1989] 1 S.C.R. 880, at pp. 906-7; Dikranian, at paras. 29-31. However,
this case does not require an examination of the nice distinctions between
them.

[47]This is because neither
presumption of legislative intent operates with respect to purely procedural
law. And so the third presumption is that, in the absence of legislative
indication to the contrary, procedural law is presumed to operate from the
moment of its enactment, regardless of the timing of the facts underlying a
particular case: Wright v. Hale (1860), 6 H. & N. 227, 158 E.R. 94,
at p. 96, quoted with approval in Application under s. 83.28 of the Criminal
Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 62.

[48]The significance of the
distinction between substantive and procedural provisions for statutory
interpretation is reflected in the Interpretation Act, R.S.C. 1985, c.
I-21. On the one hand, proceedings commenced under a now-repealed provision are
to continue under the procedures set out in the new provisions. On the other,
the repeal of an enactment does not affect any right acquired under it. I will
briefly describe the relevant provisions.

[49]The first is s. 44. It
provides that where a former enactment is repealed and a new enactment is
substituted for it, proceedings taken under the former enactment are to be
continued in conformity with the new enactment. It further provides that “the
procedure established by the new enactment shall be followed as far as it can
be adapted thereto . . . in the enforcement of rights,
existing or accruing under the former enactment,
and . . . in a proceeding in relation to matters that have
happened before the repeal”: s. 44(c) and (d)(ii) and (iii). As
Professor Sullivan puts it, “[t]hese provisions call for the immediate
application of new procedural law to all actions, including those that were
pending when the legislation came into force”: R. Sullivan, Sullivan on
the Construction of Statutes (5th ed. 2008), at p. 698.

[50]The second provision is
s. 43. It provides that the repeal of an enactment does not affect any “right,
privilege, obligation or liability acquired, accrued, accruing or incurred”
under it: s. 43(c). As Professor Sullivan puts it, the repeal does not
destroy any right or liability arising under the repealed enactment, i.e. “the
repealed law continues to apply to pre-repeal facts for most purposes as if it
were still good law” (p. 708).

[51]Professor Sullivan sums
up the cumulative effect of these two provisions as follows: “. . . the
application of new substantive law is delayed by the survival of repealed law
[but] the application of new procedural law is not” (p. 698).

B. Substantive and Procedural Law

[52]The question is how to
determine whether an enactment is substantive or procedural. A provision is
substantive if it alters the legal effect of a transaction, or if it interferes
with vested rights. While there have been many attempts to define what sorts
of provisions interfere with substantive or vested rights, a good starting
point is the statement of Duff J. in Upper Canada College, at p. 417,
citing with approval Moon v. Durden, [1848] 2 Ex. 22, 154 E.R. 389, per
Rolfe B. (at p. 396) and per Parke B. (at p. 398): “. . . it would not
only be widely inconvenient but ‘a flagrant violation of natural justice’ to
deprive people of rights acquired by transactions perfectly valid and
regular according to the law of the time” (emphasis added). The same point
is captured by the idea that a provision affects substantive or vested rights
if “an act legal at the time of doing it should be made unlawful by some new
enactment”: Midland Railway Co. v. Pye (1861), 10 C.B. (N.S.) 179, 142
E.R. 419, at p. 424, cited with approval by Duff J. in Upper Canada College,
at p. 419. Yet another way of putting it is to ask whether, if applied, the
provision “would impair existing rights and obligations”: Yew Bon Tew v.
Kenderaan Bas Mara, [1983] 1 A.C. 553 (P.C.), at p. 563, approved in
Martin v. Perrie, [1986] 1 S.C.R. 41, at pp. 48-49. Most recently, the
Court accepted that a vested right is one that results from a legal situation
that is tangible, concrete and sufficiently constituted at the time of the
enactment of the new provision: Dikranian,at para. 37.

[53]Procedural provisions,
on the other hand, “gover[n] the methods by which facts
are proven and legal consequences are established in any type of proceedings”:
Sullivan, at p. 698; they relate only to the method of conducting litigation,
not to the removal of rights of action or defences: Upper Canada College,
at p. 442, per Anglin J.; Angus, at p. 265. Included among such
provisions are legislative prescriptions of “what evidence must be produced to
prove particular facts”: Wright, at p. 95, per Pollock C.B.,
approved in The Ydun, [1899] P. 236 (C.A.), at p. 245, per
Smith L.J. and in Upper Canada College, at p. 444, per
Anglin J.; see also Application under s. 83.28 of the Criminal Code
(Re), at para. 57.

[54]Underlying the distinction between substantive
rights and matters of procedure is the idea that a change in procedure does not
deprive anyone of rights acquired by transactions perfectly valid and regular
according to the law at the time they were undertaken: Upper Canada College,
at p. 417, per Duff J. In Upper Canada College, at p. 423, Duff
J. quoted with approval the words of Mellish L.J. in Republic of Costa Rica
v. Erlanger, [1876] 3 Ch. D. 62 (C.A.), at p. 69: “No suitor has any vested
interest in the course of procedure, nor any right to complain if during the
litigation the procedure is changed, provided, of course, that no injustice is
done.” Sometimes, the test is expressed negatively: a provision is not
procedural if it “creates or impinges upon substantive or vested rights”: Application under s. 83.28 of the Criminal
Code (Re), at para. 57.

[55]A key point arising
from the jurisprudence is that the courts do not classify a provision as
substantive or procedural by looking simply at its form, but also at its
function and effect: Howard Smith Paper Mills Ltd. v. The Queen, [1957]
S.C.R. 403; R. v. E. (A.W.), [1993] 3 S.C.R. 155; Yew Bon Tew, at
p. 563; Angus,at p. 265. This applies to rules of evidence
as much as it does to other procedural provisions. If a rule of evidence “either
creates or impinges upon substantive or vested rights, its effects are not
exclusively procedural and it will not have immediate effect”: Application
under s. 83.28 of the Criminal Code (Re), at para. 57. It will be helpful to review a few examples from the Court’s
jurisprudence. I will begin with three cases that deal with the
substantive/procedural distinction in more general terms.

[56]Upper Canada College is a good early example of a functional analysis. In issue in that
case was a provision preventing the bringing of an action for payment of a
commission for the sale of real property unless the agreement on which the
action was based was in writing and signed by the party to be charged. The
question was whether this provision applied to actions on oral contracts for
commissions entered into before the provision came into force. It was argued
that it did because the provision was purely procedural: it did not take away
the right but simply the procedure for enforcing it. The majority of the Court
rejected this argument and held that the provision did not apply to contracts
entered into before the provision was enacted. The Court looked to the effect
of the provision rather than simply to its form. While in form, the provision
related to the legal remedy available, in effect, the provision “abrogat[ed] a
right of action which otherwise a party to a contract might have asserted” and
therefore should be seen as “prejudicially affecting an ‘existing legal right
or status’”: p. 431, per Duff J.

[57]Angus provides
another good example of the focus on function over form. The question there
was whether legislation abolishing spousal immunity in tort should be applied
to allegedly tortious conduct occurring before its enactment.

[58]The Court answered this question in the negative
and characterized the provisions as dealing with substantive rights. La Forest
J. for the Court stated, at p. 265, that “[n]ormally, rules of procedure
do not affect the content or existence of an action or defence
(or right, obligation, or whatever else is the subject of the legislation), but
only the manner of its enforcement or use” (emphasis in original). As he
noted, it was difficult to see how the provisions in issue affected procedure
at all (p. 265). They did not regulate what evidence was or was not admissible
or what fact should be presumed upon proof of other facts. Rather, the
provisions did away with what at the time of the conduct in question had been a
complete exemption from tort liability.

[59]In Application under
s. 83.28 of the Criminal Code (Re), the question was whether new provisions
of the Criminal Code permitting judicial investigative hearings, under
which a person could be ordered to attend and compelled to answer questions,
could be invoked in relation to events that occurred prior to their enactment.
The Court concluded that the provisions did apply because they were exclusively
procedural in nature (para. 61). As Iacobucci and Arbour JJ. put it, at para.
60, “while the judicial investigative hearing may generate information
pertaining to an offence . . . the hearing itself remains
procedural. In the manner of other procedural tools such as DNA and wiretap
authorizations, s. 83.28 provides a mechanism for the gathering of information
and evidence in the ongoing investigation of past, present, and future
offences.” In other words, the appellant did not have a substantive right not
to be examined in accordance with this procedure (para. 66).

[60]I turn now to the jurisprudence of this Court
that relates more specifically to evidentiary matters. In Howard Smith,
the question was whether an amended provision of the Combines InvestigationAct applied in a prosecution for a conspiracy alleged to have been
completed before the amendment came into force. The effect of the provision was
to make admissible in evidence documents described as “inter-office memoranda”
and to deem them to be prima facie evidence against the corporation in
whose possession they were found and also against the persons named in them: Combines
Investigation Act, R.S.C. 1927, c. 26, s. 41, as enacted by S.C. 1949
(2nd Sess.), c. 12, renumbered and amended by S.C. 1952, c. 39. The Court
unanimously held that this provision was procedural and therefore applied to a
trial held after it came into force. As Cartwright J. put it, at p. 420: “While
[the provision] makes a revolutionary change in the law of evidence, it
creates no offence, it takes away no defence, it does not render criminal any
course of conduct which was not already so declared before its enactment, it
does not alter the character or legal effect of any transaction already entered
into; it deals with a matter of evidence only . . .” (emphasis added).
Thus, evidence that before the enactment would not have been cogent evidence of
guilt became such evidence as a result of the enactment, yet the Court
concluded nonetheless that the enactment was procedural in nature and applied
to the proceedings. Simply making inculpatory evidence admissible that was
previously inadmissible did not “take away” a defence.

[61]Howard Smith is
also helpful in defining the scope of what is meant by rules of evidence.
Cartwright J., at p. 419, approving a passage from the 9th edition of Phipson
on the Law of Evidence (1952) (at p. 1), referred to substantive law as
defining rights, duties and liabilities and adjective law as defining
procedure, pleading and proof by which the substantive law is applied in
practice. The passage from Phipson on Evidence quoted by Cartwright J.
further refers to proof as “the establishment of such facts by proper legal
means to the satisfaction of the Court”.

[62]Further guidance is offered by Wildman v. The
Queen, [1984] 2 S.C.R. 311. At issue there was whether a new provision in
the Canada Evidence Act, R.S.C. 1970, c. E-10, would apply at the
accused’s trial relating to events that had arisen before its enactment.
Section 4(3.1) of the Canada Evidence Act made the spouse of an accused
a competent and compellable witness for the prosecution where the complainant
or victim was under 14 years of age. Lamer J. (as he then was) held for the
Court that the incompetence and non-compellability of witnesses is “not the
result of a substantive right to confidentiality and is merely procedural”: p.
332. He also noted that one test of whether a provision is substantive or
procedural is whether it is [TRANSLATION] “independent of the
existence of an issue” and whether it is “not affected by the fact that there
is litigation in progress”: pp. 331-32, citing P. Roubier, Le droit
transitoire: conflits des lois dans le temps (2nd ed. 1960), at p. 237.

[63]Lamer J. recognized, however, that some
presumptions could be substantive. He gave the example of the presumption of
advancement which was held by the Court in Bingeman v. McLaughlin,
[1978] 1 S.C.R. 548, at p. 557, to be substantive. The presumption of
advancement is a rebuttable presumption that when a conveyance is made from a
husband to his wife, the consideration given by the husband is intended to
advance the wife. It therefore must be seen as affecting the legal rights as
between the husband and wife at the time of the conveyance and as not being in
any way affected by the fact that there is litigation in progress.

[64]The result of the decision in Wildman was
that the new provision applied at the trial even though at the time of the
alleged offence, the accused’s spouse would not have been a compellable witness
for the Crown. As in Howard Smith, potentially important evidence of
guilt was inadmissible at the time of the events giving rise to the trial but
was nonetheless held to be admissible at trial by virtue of the new rules of
evidence.

[65]I turn next to E. (A.W.). The issue
relevant for our purposes was whether the repeal of the corroboration
requirement for a child’s unsworn evidence applied to trials occurring after the
repeal but in relation to events that occurred before. Lamer C.J. (in dissent,
but not on this point) concluded that the corroboration provision was part of
the law of evidence and that it is “the law of evidence at the time of trial
that prevails”: p. 189. Thus, potentially important inculpatory evidence which
would not have been admitted without corroboration at the time of the alleged
crime would be admissible without it under the new rules in effect at the time
of trial.

[66]From this review of the
case law, we may conclude:

1.Substantive provisions
“alter the character or legal effect of any transaction” (Howard Smith,
at p. 420). This includes taking away a previously-available defence (Upper
Canada College; Howard Smith; Angus). The operation of such
provisions is not affected by the fact that there is litigation in progress (Wildman).

2.Procedural provisions
“gover[n] the methods by which facts are proven and legal consequences are
established” (Sullivan, at p. 698). Their operation is generally dependent on
the existence of litigation.

3.Rules of evidence are
considered to be procedural in nature unless in effect they impact on
substantive rights: Application under s. 83.28 of the CriminalCode
(Re), at para. 57.

5.Provisions which make
evidence admissible that was previously inadmissible or change the conditions
under which evidence may be admitted are procedural. This is true even if the
new provisions make admissible important incriminating evidence that was
formerly excluded. Examples include provisions which: make a revolutionary
change in the admissibility and effect of documentary evidence (Howard Smith);
make a previously non-compellable witness compellable for the Crown (Wildman);
and repeal the corroboration requirement for a child’s unsworn evidence: E.
(A.W.).

C. The Provisions Are Procedural

[67]In my view, the provisions in issue here are
purely procedural. They meet all of the tests enunciated in the Court’s
jurisprudence for determining whether a provision is procedural and they have
none of the characteristics of provisions which are properly characterized as
substantive.

[68]The provisions deal with factual presumptions
and what is required to rebut them. To use the words approved by Cartwright J.
in Howard Smith, these provisions deal with the “establishment
of . . . facts” by proper legal means. Evidentiary
provisions like these are ordinarily considered to be procedural. Procedural
provisions generally depend for their operation upon the existence of
litigation. The provisions in question here do not operate unless there is a
trial in which the blood alcohol level as indicated by the breathalyzer is
contested: they are irrelevant unless and until there actually is litigation.
The provisions do not “render criminal any course of conduct which was not
already so declared before [their] enactment” (Howard Smith, at p. 420);
the elements of the offence which must be established have not changed. They
do not affect the content or existence of an action or defence; they regulate
the types of evidence required to rebut factual presumptions. Provisions such
as these that alter the mode of procedure in the conduct of a defence are still
procedural: Angus, at p. 266. The provisions in issue thus have all the
hallmarks of procedural provisions.

[69]Moreover, the provisions have none of the
hallmarks of substantive provisions. They do not attach new consequences to
past acts or change the substantive content of a defence. They do not change
the existence or content of a right. The elements of the offence have not
changed and it remains open to the accused to point to evidence raising a
reasonable doubt about the existence of those elements. The provisions do not
make conduct unlawful that was lawful at the time it occurred.

[70]My colleague Deschamps
J. writes that the provisions have eliminated or neutered a defence. I
respectfully disagree. The provisions limit the scope
of admissible evidence which could formerly have been adduced in order to
attempt to raise a reasonable doubt about one of the essential elements of the
offence. The so-called “Carter defence” in reality is a particular type
of evidence adduced in order to raise a reasonable doubt. If these provisions
are characterized as taking away a defence, then any evidentiary provision that
increases the risk of conviction would have to be so characterized. The
jurisprudence of this Court, reviewed above, makes clear in my view that this
is not the case.

[71]The Court has held in St-Onge
Lamoureux that limiting the admissibility of Carter evidence does
not infringe an accused’s s. 7Charter right to make full answer and
defence. If the limitation on the availability of Carter evidence does
not take away a defence for the purposes of the Charter, it cannot be
that the same limitation is substantive because it somehow does take away a
defence.

[72]The decision of the Quebec Court of Appeal in R.
v.Gervais (1978), 43 C.C.C. (2d) 533, is of no assistance to the
appellant. Gervais concerned a change to rights of appeal. The
jurisprudence from this Court has long made clear that the right of appeal is a
substantive right, not a matter of procedure: see, e.g., Taylor v. The
Queen (1876), 1 S.C.R. 65; Royal Bank of Canada v. Concrete Column
Clamps(1961) Ltd., [1971] S.C.R. 1038, at pp. 1041-42; R. v.
Puskas, [1998] 1 S.C.R. 1207, at para. 6.

[73]I cannot accept the suggestion
that the fact that the provision is found to limit an accused’s right to be
presumed innocent under s. 11(d) of the Charter supports the
conclusion that the provision is substantive. There are two points. First,
procedural provisions may limit Charter rights or indeed violate the Charter
just as readily as substantive ones. The Charter analysis says nothing
about the nature of the provisions for the purposes of applying the presumption
that procedural provisions have immediate effect. Second, I agree with my
colleague Deschamps J. (at para. 14) that we must assess the temporal
application of these provisions on the basis of the provisions as they stand
following the Court’s decision in St-Onge Lamoureux. The provisions in
that form do not violate the Charter. I respectfully do not accept that
the fact that they have been found to be reasonably justified as opposed to not
limiting the rights in question at all has anything to do with whether the
provisions interfere with substantive rights.

[74]I conclude that the
provisions relate only to the rules of evidence which apply at trial and that
they are therefore purely procedural. As I have explained earlier in these
reasons, the standard position on the temporal applicability of procedural
provisions is that they operate with immediate effect.

D. The Presumption of Immediate Application Is Not
Rebutted

[75]That brings us to the second question on the appeal: even if the provisions are
procedural, do the surrounding circumstances or the language of the provisions
rebut the presumption that they are to be applied immediately?

[76]The appellant submits that the legislation does
not indicate that Parliament intended any part of the amended provisions to
apply with respect to events that occurred before their enactment. The answer
to this point, as I see it, is that the provisions are purely procedural and
therefore their temporal application is well settled by the common law and
reinforced by the provisions of the Interpretation Act. Parliament is
deemed to know the law.

[77]The appellant also submits that, had it been
Parliament’s intent that these provisions should have immediate application, it
would have taken steps before they came into effect to ensure that evidence
crucial to the defence, such as video-recordings of breath testing, was
preserved and that disclosure practices were modified accordingly.
Respectfully, these considerations do not point to parliamentary intent that
these procedural provisions should not take immediate effect.
Video-recordings, disclosure and evidence about how the device performed on the
occasion in question were all important and highly relevant to the defence
before as well as after these provisions came into effect. The limitation on
the admissibility of Carter evidence in these provisions did not
suddenly render this other evidence relevant or important. It was always
relevant and important. Furthermore, Parliament has made no provision for these
matters for any cases, whether they arose before or after the amendments came
into effect. I cannot see how
Parliament’s inaction in this regard before the amendments’ enactment can
reveal legislative intent against immediate application, given that Parliament
has been similarly inactive afterthe amendments have come into force. It is therefore difficult for me to understand how the absence of
these sorts of provisions supports the view that they were not intended to have
immediate effect.

[78]The Court’s decision in
R. v. Ali, [1980] 1 S.C.R. 221, is not in my view of assistance to the
appellant. In that case, this Court considered the applicability of amendments
that required a certificate to be based on two breath samples — not only one as
in the previous legislation — to give rise to the presumption of accuracy.
This amendment was accompanied by another amendment allowing peace officers to
take more than one sample. Pratte J., writing for the majority, assumed but
did not decide that the first-mentioned amendment was procedural. However, he
decided that this amendment did not apply to events that occurred before its
coming into force, since before the amendment, it was not legally possible to
obtain the required two breath samples, but after the amendment it was. The amendment to the amount of samples required for a valid certificate
“cannot be taken to refer to samples of breath that could not be legally demanded
at the time of the offence” (p. 239). The changes to the legislative scheme as a whole demonstrated that, for
cases arising before the amendments, Parliament intended the old law to remain
effective. I respectfully do not see any parallel between that situation and
the present one. As mentioned in the previous paragraph, the amendments in
issue here were not accompanied by other amendments changing the legal availability
of relevant evidence. Nor did they make evidence relevant that was not equally
relevant before their enactment. The questions of
whether the breathalyzer device malfunctioned or was improperly operated were
highly relevant to an accused before as well as after the amendments. It
cannot be said, in my respectful view, that the effect of the amended
provisions was to require an accused to adduce evidence that he or she had no
reason to gather before the provisions came into force. An accused had every reason
to gather such evidence before as well as after the enactment of these
provisions.

E. Conclusion

[79]I am therefore of the view that the amendments
to s. 258(1) were purely procedural. They did not bring about any substantive
right. Nor did they alter the facts with respect to which a reasonable doubt
must be raised in order to rebut the presumptions that s. 258(1) creates. The
amendments are subject to the presumption of immediate application, and there
is nothing to rebut the presumption. I am reinforced in this view by the fact that in addition to the Ontario
Court of Appeal in this case, the courts of appeal for Alberta, British
Columbia and Quebec have reached the same conclusions: R. v. Gartner, 2010 ABCA 335, 490 A.R.
268; R. v. Truong, 2010 BCCA 536, 296 B.C.A.C. 248; R. v. Loiseau,
2010 QCCA 1872 (CanLII).

[80]The amended version of s. 258(1) is therefore
applicable to all s. 253 charges, whether the facts that ground them occurred
before or after the amendments’ enactment. This includes the charges against
the appellant.

V. Disposition

[81]I would dismiss the appeal and uphold the Court
of Appeal’s order for a new trial. This trial should apply the amended
provisions, as severed in this Court’s concurrently released decision in St-Onge
Lamoureux.